Who gets custody of Twitter when an employee quits?

An employee of PhoneDog left and took his @PhoneDog_Noah Twitter account with …

Another day, another post-employment dispute over a social media account.

In this case, Noah Kravitz worked for PhoneDog, which is an "interactive mobile news and reviews web resource." Kravitz worked as a reviewer and video blogger. He used the "@PhoneDog_Noah" Twitter account, and it amassed approximately 17,000 followers. When he left, PhoneDog asked for the account "back" but he demurred, instead changing the account handle from @PhoneDog_Noah to "@noahkravitz". PhoneDog sued, asserting claims for misappropriation of trade secrets, interference with economic advantage; and conversion.

Trade secret claim: Kravitz argued that there was no "trade secret" information, because the followers of the account are not secret and are publicly discernable. The passwords he argued merely allow an individual logging on to the account to view the publicly known follower information. He also argued that PhoneDog did not adequately safeguard the password information and treat it as a trade secret. The court punts on the issue and says:

PhoneDog has sufficiently described the subject matter of the trade secret with sufficient particularity and has alleged that, despite its demand that Mr. Kravitz relinquish use of the password and Account, he has refused to do so. At this stage, these allegations are sufficient to state a claim. Further, to the extent that Mr. Kravitz has challenged whether the password and Account followers are trade secrets and whether Mr. Kravitz's conduct constitutes misappropriation requires consideration of evidence beyond the scope of the pleading.

Economic advantage claim: The court rejects the interference with economic advantage claim, saying that PhoneDog's allegations were muddled on this issue. It was unclear as to whether PhoneDog was saying Kravitz interfered with PhoneDog's relationship with account followers or with its subscribers or consumers more generally. The court also says PhoneDog failed to connect the dots with respect to any harm based on advertiser relationships, or even any economic harm generally. [I hope PhoneDog was not making a claim based on its vicarious relationship with followers of the @PhoneDog_Noah Twitter account—we all know how tenuous social media relationships are!]

Conversion: The court declines to dismiss the conversion claim, saying that PhoneDog alleged it had the right to possession over the account, and "the nature of that claim is at the core of this lawsuit and cannot be determined on the present record."

Was the password really a trade secret? Is an account's follower list a trade secret? Social media account information does not fit nicely within the trade secret box. "Customer lists" historically were a classic trade secret, but when customer lists are now published publicly and capable of being mined, does that concept go away? Even if the list were public, could anyone "download" the list? Could Noah have contacted the list any other way than through the account that he's supposed to turn over? What if Noah had posted a "goodbye" tweet saying "follow me at [new account name]"?

With respect to the conversion issue, the court's analysis was disappointingly brief. It's interesting that, in this case, PhoneDog has its own Twitter account and this particular account was one set up specifically for Kravitz—it's not as if he took the company's sole Twitter account. One other claim you often see discussed in this context is a trademark-based claim. Kravitz likely averted these by changing the name of the account, and presumably removing any PhoneDog branding elements.

A somewhat interesting aspect of the dispute arose over the value of the Twitter account and followers, which was relevant to the issue of whether PhoneDog's claim for damages got over the $75,000 hurdle. (It had to satisfy the $75,000 jurisdictional threshold for diversity jurisdiction.) PhoneDog said it suffered $340,000 in damages. The account had 17,000 followers, "which according to industry standards, are each valued at $2.50." [I must admit that this caused an eyeroll.] PhoneDog said this translated into a monthly damage amount of $42,500 "for each month that [Kravitz] used the account."

Kravitz argued that Twitter followers have discretion to subscribe or unsubscribe and therefore this valuation was suspect. He also argued that the value in any Twitter account "comes from... efforts in posting tweets and [an] individual's interest in following... not from the account itself."

According to him, there's no evidence that an account even with a significant number of followers has any ongoing value. The court does not resolve this issue, instead finding that PhoneDog alleged enough to get over the $75,000 jurisdictional threshold. These arguments really made me wonder whether the parties were spending money on the dispute in excess of the assets they were fighting over. As in many business break ups, emotions tend to run high. This was surely a contributing factor. This case has mediation written all over it.

I even keep a separate personal cell phone for my personal use. Sure, the company I work for has given me one, but if I were to sever from my employer, I would lose my phone number, phone, etc. It's good advice in keeping private personal accounts for popular sites separate from business related accounts.

I think I side with the companies here. People follow the account under the pretence that the user represents a certain website/media outlet. The followers gained are at least partly comprised of people who are following that website's work and not the authors work in specific. That's especially true of tech sites where people have turned to twitter as a replacement for their standard feed readers. Following a site's writers has replaced subscribing to a site's RSS feeds.

I'm sure the writer will claim people signed up because they were fans of his work, but if that was the case he should have established his own standalone twitter account which was unlinked from the company he worked from.

I'm not sure WHY he wouldn't want to have his own separate Twitter account from his work related account, but besides that...

it's totally idiotic to think that the follower list could possibly be a trade secret. I wonder if that judge involved really 'gets' Twitter because if he or she did he would have thrown out that claim immediately. Correct me if I'm wrong, but a trade secret is only protected while it remains a secret. If an employee reveals a trade secret they can be sued -- and the 'trade secret' becomes public and therefore unprotected -- but publicly available information can NEVER be a trade secret in the first place!

The takeaway is that there needs to be a written agreement that governs this issue.

The judge should order both Noah and the CEO held for psychiatric review. Here's a company that's a tech or social media company and they don't have a specific policy written down on this? The company must be run by two guys named Maurice and Ronald - MoRon for short.

With respect to the conversion issue, the court's analysis was disappointingly brief.

Was this a motion to dismiss, motion for summary judgement? Without the standard how are we supposed to judge the analysis. Relatedly, a link to the decision is always nice, or at least a PACER reference.

I even keep a separate personal cell phone for my personal use. Sure, the company I work for has given me one, but if I were to sever from my employer, I would lose my phone number, phone, etc. It's good advice in keeping private personal accounts for popular sites separate from business related accounts.

You would? I have a company-issued cell-phone and a phone-account that belongs to them, and I use it for everything. If I for some reason changed jobs, the employer would simply hand over the phone-number to me.

Where it might be difficult or awkward (hypothetical) is in the case of the online press - tech bloggers at, say, ars, Techcrunch, Techdirt, cNet, and on, and on. Take the case of a writer of a "column" for one of these who has developed a name-associated "following". S/he leaves or gets booted out and must for awhile make it alone as an independent blogger/tweeter. What about that name?

What's the difference between following a person and following a company? Go fish.

See, it seems to me that it depends on who created it and why. If Noah made it and personally set it up as an outreach, it's his to take with him. If the company made it, or asked Noah to make it as a customer access/marketing effort, then PhoneDog should keep it.

If this was unclear for any reason, I feel like Noah should have made a new account, pushed out some "goodbye" messages to Twitter with his new personal account linked for those that want to follow him, and that would be that. (Or possibly, PhoneDog should have set up an official replacement Twitter, and done the same)

With respect to the conversion issue, the court's analysis was disappointingly brief.

Was this a motion to dismiss, motion for summary judgement? Without the standard how are we supposed to judge the analysis. Relatedly, a link to the decision is always nice, or at least a PACER reference.

Otherwise, good article.

It sounds like a motion to dismiss for failure to state a claim on which relief can be granted.

You would? I have a company-issued cell-phone and a phone-account that belongs to them, and I use it for everything. If I for some reason changed jobs, the employer would simply hand over the phone-number to me.

Isn't that the way things are done there?

In just any state in the US that I'm familiar with, it is purely the employer's option in that case to let you take the phone number. Even if you brought that number with you, if you didn't have it written down that you still would keep it, you'd have a court fight if the company decided to contest it.

This is different though as those 17000 followers arguably represent a list of customers. Noah is potentially poaching customers and that's huge deal.

Which all brings up a question: WHAT COURT IS THIS CASE IN? State employment laws (I assume it's in the US, otherwise why mention Sanchez?) vary and would greatly inform the outcome of this case.

Where it might be difficult or awkward (hypothetical) is in the case of the online press - tech bloggers at, say, ars, Techcrunch, Techdirt, cNet, and on, and on. Take the case of a writer of a "column" for one of these who has developed a name-associated "following". S/he leaves or gets booted out and must for awhile make it alone as an independent blogger/tweeter. What about that name?

What's the difference between following a person and following a company? Go fish.

I'm with Happysin with this one.

If the company asks me to start maintaining their online presence in the social space (through Twitter, Facebook) then that account clearly belongs to them, even if I'm the one that starts it and implements the social media strategy behind it.

To me he just seems butthurt because he's losing a large number of followers, a thing which can be easily rectified by just linking to his new/personal account before handing over the former one to the company he works for. This is also a better way to see who is following you because they actually read and care what you write or people who just follow you because you're the internet presence of a company.

Tech bloggers at Ars for example have their own personal accounts from where they retweet articles written for Ars as well as general things that happen in their lives or things they find and don't write about, and this is the way it should be done. The ArsTechnica twitter account will stay with the company as it represents (or should) only the views and opinions of the company, and not of the individual maintainer(s) behind that account.

With respect to the conversion issue, the court's analysis was disappointingly brief.

Was this a motion to dismiss, motion for summary judgement? Without the standard how are we supposed to judge the analysis. Relatedly, a link to the decision is always nice, or at least a PACER reference.

Otherwise, good article.

It sounds like a motion to dismiss for failure to state a claim on which relief can be granted.

Is that really the court punting it? The way it reads, I get the impression that this is a response to a motion to dismiss, i.e. the court is essentially saying, "Based on the allegations and Kravitz's initial response, there is a case here. We will now proceed to the discovery phase."

Edit: Yeah, several other comments in the article suggest that this wasn't the resolution of the case, but the judge's response to a motion. So to say that the court has left things unresolved is premature. Shouldn't the article's author know this, being a lawyer?

Here's a company that's a tech or social media company and they don't have a specific policy written down on this?

Welcome to the real world. It's not at all surprising someone didn't spend lots of time/money writing policy for such minutia. Who would have thought that stuff like Twitter would become .. (I hate to say it) .. "important?" This kind of stuff gradually and incrementally crept up on everyone.

Here's a company that's a tech or social media company and they don't have a specific policy written down on this?

Welcome to the real world. It's not at all surprising someone didn't spend lots of time/money writing policy for such minutia. Who would have thought that stuff like Twitter would become .. (I hate to say it) .. "important?" This kind of stuff gradually and incrementally crept up on everyone.

If it's a SaaS company,a code tools company, or traditional media company, this could be minutia. A company that appears to be a tech media company should be a bit more aware of these things IMO. It's a bit like a software development company not establishing who owns the code.

I'm not sure WHY he wouldn't want to have his own separate Twitter account from his work related account, but besides that...

17,000 followers + big ego. He most likely made a lot of friends in that group and also enjoys reaching out to that many people on his tweets.

As for the legality issues that have arisen, I would look at it from a property standpoint, not a "trade secrets" standpoint. This account was made for an employee working for Phonedog, not for the personal use of Nate Kravitz.

Therefore, upon dismissal, termination or voluntary quit, the account is still property of Phonedog, not Nate Kravitz. There's no trade secret legalities necessary for this one.

The account is like a phone, computer, desk or chair given to the employee to perform their work. Once the employee no longer works there, you don't expect them to take their desk, chair, phone or computer, do you?

PhoneDog has its own Twitter account and this particular account was one set up specifically for Kravitz—it's not as if he took the company's sole Twitter account.

That's an interesting argument. Does it work with anything?"PhoneDog has its own server and this particular server was set up specifically for Kravitz--it's not as if he took the company's sole server."

Janne wrote:

You would? I have a company-issued cell-phone and a phone-account that belongs to them, and I use it for everything. If I for some reason changed jobs, the employer would simply hand over the phone-number to me. Isn't that the way things are done there?

This Twitter account is a connection between the company and the public. If you were a company's receptionist, and left your job, would you expect the company to give you the company's public telephone number?

Yeah, I have to side with the company here. The account was clearly created for work purposes, and his refusal to turn it over seems like a cut-and-dry case of conversion. The interference with economic advantage claim also seems appropriate. He should have just started a new twitter account and sent out a message on the old one letting everyone know about it.

That said, the trade secrets claim is bogus and the amount damages claimed are ridiculous.

The way I see it is if it's covered in a contractual agreement, let that be the rule.

If there is no contract, then look at how he was paid and if he was an employee. As an employee of the business, anything related to the business is owned by that business (again, assuming no contract stating otherwise). So, it then belongs to the business.

If he was an independent contractor, then he can't be very independent if they own the things he created. As an independent contractor, he owns the IP.

I think the only minor hangup here is the fact that the company's name was part of the handle (has it always been?) There are plenty of pro's that use an account that is not linked to a company name but advertise and gain followers through their work at whatever company.

Quick example - Casey Johnstone and Peter Bright have @caseyjohnstone and @drpizza on their Ars profile pages (no mention of Ars in the handle). Ars readers no doubt use those links to keep up with whatever they're pushing - Ars related or not.

If they leave Ars, does Ars/Conde Nast have any claim to their account? Any claim to the followers they gained while working at Ars?

Twitter's servers and data are not operated or paid for by Phone Dog. Also Twitter accounts have the inherant ability to change names (unlike corporate e-mail or phone systems).

If the account was used solely by Kravitz to post both personal and professional topics whether on or off hours, then it was used (and likely viewed by followers) as a personal account.

He didn't reappropriate the @PhoneDog account that anyone in marketing uses to keep the public updated about the company's activities.

I'm skewing towards this being OK -- but noting for the future to leave any mention of a company out of a handle -- even if it is easily changed.

This Twitter account is a connection between the company and the public. If you were a company's receptionist, and left your job, would you expect the company to give you the company's public telephone number?

No, the twitter account is a connection between the media consumers and the author, Noah Kravitz. For example, I don't read "All About Microsoft" because it is on ZDNet, I read it because it's writtten by Mary Jo Foley.

If Mary Jo quit ZDnet and left, I would follow her. Yes, ZDNet is why I know about her (or it might be more approprate to say Bing is why I know of her, Google originally), but I didnt keep coming back for more because of ZDnet.

At point does the continued interest from consumers for the specific author outstrip the media company's claim based purely on providing the forum that made that possible? Which was the more important part? The initial connection, or the creativity that fostered the relationships?

It should be noted that, as far as the twitter account goes, the company didn't have to shoulder any financial liability or anything like that - Twitter itself does that for all of its' users.

I think the only minor hangup here is the fact that the company's name was part of the handle (has it always been?) There are plenty of pro's that use an account that is not linked to a company name but advertise and gain followers through their work at whatever company.

Quick example - Casey Johnstone and Peter Bright have @caseyjohnstone and @drpizza on their Ars profile pages (no mention of Ars in the handle). Ars readers no doubt use those links to keep up with whatever they're pushing - Ars related or not.

If they leave Ars, does Ars/Conde Nast have any claim to their account? Any claim to the followers they gained while working at Ars?

Twitter's servers and data are not operated or paid for by Phone Dog. Also Twitter accounts have the inherant ability to change names (unlike corporate e-mail or phone systems).

If the account was used solely by Kravitz to post both personal and professional topics whether on or off hours, then it was used (and likely viewed by followers) as a personal account.

He didn't reappropriate the @PhoneDog account that anyone in marketing uses to keep the public updated about the company's activities.

I'm skewing towards this being OK -- but noting for the future to leave any mention of a company out of a handle -- even if it is easily changed.

The thing is, name is important; usually when a social networking account has the name of a company it's owned by that company and not whoever it is that maintains that account.

In this case, @PhoneDog account was used, AFAIK, solely as a company account, with no personal content whatsoever (and no, replies do not count as personal content in this case, as they originate from tweets related to the business of the company) so it should stay in the possession of PhoneDog.

Now, in Casey Johnstone and Peter Bright's case, those are clearly personal account; sure, they push out news about the articles they're writing, but most of the content there is of a personal nature, compared to the PhoneDog one. So, if they decide to leave, ArsTechnica would have no case to ask for those accounts, even moreso as they have their own official Twitter account (@ArsTechnica).

The problem comes from the fact that Kravitz didn't understand that that isn't his own personal account, but that he's merely managing the account of the company for which he's working. Or better said, it comes from the fact that he wants to keep all the people who follow that account, which means free publicity for whatever he decides to do next.

This can be a problem if he decides for example to start a competing website; a lot of people won't resubscribe to the new PhoneDog account so instead of receiving news from PhoneDog they'd get updates from a competing website.

In short, he's just being a jerk, especially now after changing the name of the account. Just tweet that you're moving to another account and see who follows you, instead of trying to steal the address book of your employer.

With respect to the conversion issue, the court's analysis was disappointingly brief.

Was this a motion to dismiss, motion for summary judgement? Without the standard how are we supposed to judge the analysis. Relatedly, a link to the decision is always nice, or at least a PACER reference.

Otherwise, good article.

It sounds like a motion to dismiss for failure to state a claim on which relief can be granted.

I was thinking 12(b)(6) as well, but the article should say.

I agree - there's a very good reason the judge was vague if it was 12(b)(6). All he had to say was there's enough there to state a claim - nothing was said on the merits - it hardly qualifies as punting.

This Twitter account is a connection between the company and the public. If you were a company's receptionist, and left your job, would you expect the company to give you the company's public telephone number?

No, the twitter account is a connection between the media consumers and the author, Noah Kravitz. For example, I don't read "All About Microsoft" because it is on ZDNet, I read it because it's writtten by Mary Jo Foley.

So then you'd have no issue with say, the company allowing him to tweet an announcement that his NEW NON-PHONEDOG ACCOUNT name will be #noahkravitz and then change the #phonedog_noah account to a #phonedog_nextemployee account?

Because really, that would be the most fair and reasonable deal. The following he generated was for that company, not for his personal glory. If they love him, they'll follow him to whatever account he goes to. If not, and they just want info from Phonedog, they'll stick with the other account.

The bottom line is, it was created while he was employed by Phonedog, the account was tagged with PHONEDOG, hence it was for WORK, not play. This puts it squarely in the same level of property rights as your work email. It belongs to the company, not the employee.

With the name having been changed to reflect the employee is no longer listed as joined with the company, I side with the twitter account belonging to the employee.

He's right in that a "customer" would easily see the name on his account has changed and decide to unsubscribe.

Really, the company is just trying to piss on him.

With the account created with and having become popularized using the trademark of "PhoneDog" I think it is fair to argue that the account was somehow a "work product". If so, Noah - no longer am employee, would seem to have no right to rename the account or continue using it.

Given that at this moment I am using a work related account, perhaps I am biased. :-)

With the name having been changed to reflect the employee is no longer listed as joined with the company, I side with the twitter account belonging to the employee.

He's right in that a "customer" would easily see the name on his account has changed and decide to unsubscribe.

Really, the company is just trying to piss on him.

With the account created with and having become popularized using the trademark of "PhoneDog" I think it is fair to argue that the account was somehow a "work product". If so, Noah - no longer am employee, would seem to have no right to rename the account or continue using it.

Given that at this moment I am using a work related account, perhaps I am biased. :-)

Did PhoneDog create the account for the new employee or did the employee create it himself? If he created it himself, as another reader questioned: Did the account exist prior to employment with PhoneDog and it was changed thereafter to include "PhoneDog" in the beginning? Did PhoneDog have a contractually binding agreement with said employee?

Also pointed out by another reader, they followed him for his personal voice - regardless of whether he was the very mouthpiece of a company or not, they were drawn to him specifically. If that were not the case, why weren't they all already following just the "PhoneDog" account (assuming there is one)? If there is, where is the damage?

Until he commits fraud by acting "on behalf of" PhoneDog, I don't see how it holds any water. Given the fact that he already took the "PhoneDog" portion off, I highly doubt that's the intent.